Citation Nr: 0107574
Decision Date: 03/14/01 Archive Date: 03/21/01
DOCKET NO. 99-20 150 A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an increased evaluation for lumbosacral
strain, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ralph G. Stiehm, Counsel
INTRODUCTION
The veteran had active service from March 1943 to February
1946. This case comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois.
REMAND
During the pendency of the appellant's appeal, the Veterans
Claims Assistance of Act of 2000 (the Act) became law. Pub.
L. No. 106-475, 114 Stat. 2096 (2000). This liberalizing
legislation is applicable to the appellant's claims. See
Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
The Act, essentially, eliminates the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that the VA will assist a claimant in obtaining
evidence necessary to substantiate a claim, but is not
required to provide assistance to a claimant if there is no
reasonable possibility that such assistance would aid in
substantiating the claim. The Act, furthermore, contains
certain notification provisions, which apply in the event
that there exists evidence that has not been obtained.
The Act provides, in relevant part:
ASSISTANCE IN OBTAINING RECORDS- (1) As part of the
assistance provided under subsection (a), the
Secretary shall make reasonable efforts to obtain
relevant records (including private records) that
the claimant adequately identifies to the Secretary
and authorizes the Secretary to obtain.
(2) Whenever the Secretary, after making such
reasonable efforts, is unable to obtain all of the
relevant records sought, the Secretary shall notify
the claimant that the Secretary is unable to obtain
records with respect to the claim. Such a
notification shall--
(A) identify the records the Secretary is unable to
obtain;
(B) briefly explain the efforts that the Secretary
made to obtain those records; and (C) describe any
further action to be taken by the Secretary with
respect to the claim.
With respect to providing examinations, the Act provides in
pertinent part:
MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS- (1)
In the case of a claim for disability compensation,
the assistance provided by the Secretary under
subsection (a) shall include providing a medical
examination or obtaining a medical opinion when
such an examination or opinion is necessary to make
a decision on the claim.
(2) The Secretary shall treat an examination or
opinion as being necessary to make a decision on a
claim for purposes of paragraph (1) if the evidence
of record before the Secretary, taking into
consideration all information and lay or medical
evidence (including statements of the claimant)--
(A) contains competent evidence that the claimant
has a current disability, or persistent or
recurrent symptoms of disability; and
(B) indicates that the disability or symptoms may
be associated with the claimant's active military,
naval, or air service; but
(C) does not contain sufficient medical evidence
for the Secretary to make a decision on the claim.
Service connection was established for lumbosacral strain in
October 1949, at which time the veteran's disability was
evaluated as 10 percent disabling. In December 1988, a Board
decision denied service connection for degenerative disc
disease of the cervical and lumbar spine, noting that there
was no evidence of neurologic disease in 1949. That
decision, which reflects a determination that lumbosacral
strain was manifested by complaints of pain and limitation of
motion, assigned a 10 percent evaluation, made effective May
1987, to the veteran's service-connected lumbosacral strain.
Treatment records reflect the presence of arthritis of the
lumbosacral spine and spinal stenosis. For instance a July
1989 entry reflects the presence of spinal stenosis with
radicular symptoms and decreased ankle jerk. Another entry
which documents a history since the 1940's of back pain
similarly reflects an impression of spinal stenosis and notes
that limitation of motion in the hips secondary to low back
pain. A March 1991 entry references lumbar radiculopathy,
characterized as secondary to an old injury.
During a VA examination in October 1991 diagnoses included
lumbosacral strain with spasms of the lumbar area and
degenerative osteoarthritis of the lumbar area, with positive
low back signs and marked limitation of the lumbar spine
area. During a VA examination in March 1994 diagnoses
included severe degenerative joint disease and spinal
stenosis.
During a VA examination in March 1999, the veteran complained
of low back pain, with radiation and occasional numbness of
the left leg. The examiner observed that radiographic
examination in March 1997 revealed severe degenerative
arthritis of the lumbosacral spine. The diagnoses were
spondylosis of the lumbosacral spine with a left L4, L5, and
S1 radiculopathy and spinal stenosis of the lumbosacral
spine.
The evidence before the Board raises some question as to
whether stenosis, arthritis and the veteran's neurologic
complaints are part of the veteran's service-connected
disability. Although the Board, in December 1988, denied
service connection for degenerative disc disease, that
decision did not address service connection for arthritis or
stenosis. Furthermore, since then, the claims file has
associated with it additional evidence of neurologic
impairment associated with the veteran's history of
complaints.
The report of the VA examination conducted in March 1999 does
not reflect an opinion as to whether disabilities such as
arthritis/stenosis and any neurologic impairment are
associated with what until now has been characterized as
lumbar strain. Furthermore, that opinion does not offer any
mechanism to segregate the symptomatology associated with the
veteran's service-connected lumbar strain from symptomatology
not associated with that disability. Further examination,
therefore, is warranted in order to develop a better picture
of the veteran's disability.
The claims file, therefore, is REMANDED for the following
development:
1. The RO should contact the veteran and
request that the veteran identify all
health care providers who have provided
the veteran with treatment for a back
disorder and the dates of treatment
received. After obtaining any necessary
releases, the RO should attempt to obtain
those records and associate those records
with the claims file. If the RO is
unable to obtain any records identified,
the RO should notify the veteran.
2. Thereafter, the veteran should be
accorded a VA examination by an
appropriate physician to identify the
nature of and etiology of any back
disorders, as well as the severity of any
back disorder. Prior to the examination,
the RO should provide the examiner with
the veteran's claims file and a copy of
this Remand for review. Thereafter, the
examiner should conduct all evaluations,
studies, and tests deemed necessary.
Following a comprehensive review of the
claims file and the veteran's history and
a thorough examination, the medical
examiner, should identify all present
disorders of the low back, including, if
present, arthritis, spinal stenosis and
degenerative disk disease. The examiner
should then indicate whether it is as
least as likely as not that arthritis,
stenosis, degenerative disk disease, and
or any neurologic symptoms are
etiologically related to the veteran's
service-connected lumbar strain. If the
examiner determines that any back
disorder identified is not etiologically
related to lumbar strain, the examiner
should offer an opinion as to whether the
disorder is otherwise related to service.
If the examiner determines that a
disorder is not otherwise related to
service, the examiner should indicate
whether the disorder is made appreciably
worse by lumbar strain. The examiner
must provide complete findings of any
pertinent symptomatology present
including any limitation of motion and
any neurologic findings. In accordance
with DeLuca v. Brown, 8 Vet. App. 202
(1995), the examination report should
address whether any pain (including
painful motion or pain with use), flare-
ups of pain, weakened movement, excess
fatigability, or incoordination results
in functional loss. The examiner should
state whether any pain claimed by the
veteran is supported by adequate
pathology and is evidenced by visible
behavior. To the extent that it is
possible, any functional loss that is
present should be expressed as degrees of
limitation of motion or ankylosis of the
affected joint. The examiner should
indicate the extent to which the findings
in question are attributable to lumbar
strain, the effects of lumbar strain on
another disability, or a back disability
otherwise related to service. To the
extent that findings reported are not
attributable to any of the above, the
examiner should so indicate. The
examiner should provide the complete
rationale on which the opinion is based.
The claims file must be made available to
the examiner for review.
3. The RO should then review the VA
examination report to determine whether
its complies with the previous
instruction. If it is deficient in any
regard, immediate corrective action
should be taken.
4. When the development requested has
been completed, the case should again be
reviewed by the RO on the basis of all
the evidence. The RO should consider all
of the representative's assertions and
apply all regulations pertinent to the
veteran's claims. The RO should consider
the holdings in Allen v. Brown, 7 Vet.
App. 439 (1995), and DeLuca, noted above.
The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. If the decision is
adverse to the veteran, the RO should
provide the veteran and his
representative a supplemental statement
of the case that lists all pertinent
statutory and/or regulatory provisions on
which the RO's denial is based and an
opportunity to respond thereto before the
claim is returned to the Board for
further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
BRUCE KANNEE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).